In 2000, a conservative Supreme Court appointed a conservative president. How conservative is today’s Supreme Court? And what does it matter? The answers to one of these questions may be found in a paper by Richard Posner and William Landes. In “Rational Judicial Behavior: A Statistical Study,” Posner and Landes use a database that includes the political background and voting records of the past 70 years of Supreme Court justices—who appointed each justice and how the justices decided every case—to come up with a ranking from most conservative to least conservative, of the 43 justices who have served on the court since 1937.
Their conclusion: Four of the five most conservative justices to serve on the Supreme Court since Franklin Roosevelt, including John Roberts and Samuel Alito, are sitting on the bench today. Anthony Kennedy, another current Republican appointee, is ranked No. 10. Little is yet known about Sonia Sotomayor or Elena Kagan, but Ruth Bader Ginsburg and Stephen Breyer are among the 15 “least conservative” justices of the past 70 years. Clarence Thomas, the second black justice, is ranked the most conservative ever. Given the current makeup of the Court, Justice Breyer may well be the swing vote.
Why does it matter? Well, for starters, the fate the “Making Health Affordable Act of 2010” may well ride on it. Following the decision this week by U.S. District Judge Roger Vinson, who declared the law unconsititutional and an “overreach” of Congressional authority, its future without doubt will rest with the Supreme Court. While last year, a Viginia judge declared the insurance mandate unconstitutional, Vinson took it much further, invalidating provisions that range from Medicare discounts for seniors with high prescription costs to a change that allows adult children up to age 26 to remain on their parents’ coverage. The White House says Justice Vinson’s decision is a case of judicial overreach. Meanwhile, administration officials declared that for now the federal government and the states would proceed without interruption to carry out the law.
Let us hope that it’s not déjà vu 2000 all over again!
 Landes WM, Posner RA. Rational judicial behavior: a statistical study. April 2008). University of Chicago Law & Economics, Olin Working Paper No. 404. J Legal Analysis. 2008 April; 1(2):775-831. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1126403. Accessed February 3, 2011.